Sanction for Prosecution

Accused was a police official who was convicted by Trial Court and sentenced to various terms of imprisonment extending upto three years along with fine

Plea raised by accused was that trial was conducted without seeking mandatory prior sanction for prosecution of government servant

Validity

Accused had already served the term of punishment awarded to him by Trial Court

Prosecution could not be directed to prosecute accused again after obtaining proper sanction from competent authority or to apply any formal method afresh to bring irregularities in earlier trial within parameters of relevant law

Such would be violative of fundamental rights guaranteed to accused under Art. 13 of the Constitution, whereby he was protected against prosecution or punishment for the same offence once again and was also a violation of Art. 4 of the Constitution, as accused was not dealt with in accordance with law i.e. Pakistan Criminal Law Amendment Act, 1958, and Sindh Enquiries and Anti-Corruption Act, 1991 and Sindh Enquiries and Anti-Corruption Rules, 1993

High Court directed the authorities to refund amount of fine to accused as the same was reversible but term of sentence already served could not be reversed

Appeal was allowed accordingly.

Public servant taking gratification other than legal remuneration in respect of official act; common intention, criminal misconduct

Bail, refusal of

Sanction for prosecution

Requirement

Accused, Assistant Commissioner, was caught red handed by the raiding party headed by the Civil Judge and Judicial Magistrate in presence of the complainant, when the amount received by him as illegal gratification had been recovered from the drawer of his table, for which the accused could not give satisfactory account

Accused was not co-operating with the prosecution and had not volunteered himself to record his statement before the Investigating Officer, due to which the prosecution had not been able to submit final Challan before the court

Defiant attitude of the accused was going to affect and influence the trial if he was set at liberty

Enough material was available on the record to prima facie connect the accused with the commission of the offence

Under the FIR and the Trap Report, distinct and specific allegations had been levelled against the accused

Prosecution was not bound to obtain prior permission from the competent authority before initiating enquiry, investigation and lodging of the FIR against the accused/public servant and his subsequent arrest as a result thereof

Provisions as to sanction of the President, the Governor of the Province or any other executive authority mentioned in S. 197, Cr.P.0 and S. 6(5) Pakistan Criminal Law Amendment Act, 1958 were repugnant to the injunctions of Islam; therefore, exercise of framing Sindh Enquiries and Anti-Corruption Rules, 1993, contemplating obtaining necessary permission from the competent authority before initiating inquiry, FIR, investigation and submission of challan under Rr. 11 & 13 of the Rules was mala fide, void ab initio and of no legal effect

Even under said Rules, there was no requirement of obtaining prior such permission/sanction

High Court observed that indulging in corruption and taking bribe had become a de facto recognized norm of the society, which was corroding the entire edifice of State, and due to that rampant corruption currently prevailing, the very image of the country had been whittled down in the eyes of the comity of nations

Case of corruption, therefore, should not have been taken leniently, however trivial, the punishment might have been provided for commission of the same

For treating offences (of corruption), an entirely different criterion was to be set different than the one which was adopted for offences punishable under P.P.C. or any other ordinary law

Offence alleged to have been committed by the accused came well within the ambit of crime of corruption, which adversely affected the society at large

Investigation of the case had not been concluded and challan not submitted so far, therefore, it would not be appropriate to admit the accused to bail at that premature stage

Bail application was dismissed accordingly.

S. 5(2)-Sanction for prosecution-Sanctioning authority applying his mind to facts of case-Not necessary for him to obtain accused's explanation .or even to ascertain if he had any explanation to offer.

S. 197-Public servant-Sanction to prosecute-Magistrate acting only upon allegations contained in complaint and holding accused to have acted in course of official duties-Such finding even though not disturbed in appeal and revision, being based on no evidence, can have no higher value than a tentative opinion-Magistrate directed to take evidence on point whether accused at relevant time engaged in discharge of official duties and to stop proceedings and give prosecution time to file requisite sanction if he comes to such finding-Accused, held, can be discharged only when prosecution fail to file such sanction.

S. 6 (5), Explanation-Sanction for prosecution-Public servant ceasing to be a public servant at time of taking cognizance of offence Sanction not necessary-Interpretation of statutes-Object and reasons may be referred to for limited purpose of ascertaining conditions prevailing at time of passing of statute though not for construing words used in statute.

S. 6(5)-Sanction for prosecution-Question whether sanction was granted after full satisfaction of sanctioning authority-Cannot be decided without examining sanctioning authority-Special Judge not recording evidence of parties nor giving opportunity to prosecution. to prove that sanctioning authority was posted with all material facts before giving sanction-Acquittal of accused for want of "proper sanction", held, cannot be sustained in circumstances.

S. 197-Sanction for prosecution-Public servant `acting or purporting to act in discharge of his official duty'-Failure to perform official duty not unconnected with question of performance of duty Protection afforded by S. 197 available equally whether offence alleged consists of omission or commission on part of public servant-Public servants alleged to have abandoned their duty and to have failed to prevent or quell rioting-Sanction for prosecution all the same, held, necessary.

Sanction for Prosecution -Question of sanction not raised at trial stage-Not allowed to be raised in High Court for first time.

Sanction for Prosecution -Appointing authority (Superintending Engineer) is sanctioning authority on behalf of " appropriate Government "Public Works Department Code, para. 17.

Sanction for Prosecution Sanction to prosecute-Accused's plea that there was a prior determination by Government that accused should not be prosecuted-Whether affects validity of sanction (Quaere).

Sanction for Prosecution -Previous sanction necessary for a prosecution-Sanction must be before Court prior to the Court's taking cognizance of case-Mere bringing into existence a sanction without filing it in Court-Of no avail.

-Sanction for prosecution-Offence committed in place within territory of West Pakistan by person resident of place in Azad Kashmir-Sanction for Prosecution by Azad Kashmir Government-Trial valid-Sanction of West Pakistan Government not necessary-Criminal Procedure Code (v of 1898), S. 188.

Granted under belief that sanctioning authority was bound to accord sanction if in its opinion there was a prima facie case-Sanction invalid Pakistan Criminal Law Amendment Act (XIX of 1948), S. 5 (5).

Given after examining only substance of case-Not invalid.

S 6 Sanction for prosecution-No obligation on Officer granting sanction to make a personal enquiry before doing so.

Validity or sufficiency of Objection in Supreme Court completely different from that taken in trial Court - Not permitted.

Plea of-Must be raised early.

Technical, intricate and varying provisions in Central and Provincial Acts-Operate as a scheme for protection of corrupt public servant.;-Need for revision by legislature in interest of Justice.

Sanction for Prosecution Sanction for prosecution-Sanctioning authority described as "Deputy Commissioner" instead of ` Collector "-Error immaterial.

Sanction for prosecution?Authority competent to remove public servant?Effect of S. 240 (2) of Government of India Act, 1935.

Sanction for Prosecution Sanction to prosecute-Not valid-Trial without jurisdiction. As there had been no sanction such as is contemplated by law and which could confer jurisdiction on the Court to take cognizance of the offence, the trial must be held to be vitiated and in fact no trial, in the eye of law.

S. 23-Sanction for prosecution-Invalid if proof wanting that sanction was given in respect of facts constituting particular offence-Invalidity of sanction not cured by S. 537, Cr. P. C.